MIELO et al v. STEAK 'N SHAKE OPERATIONS, INC.
Filing
115
MEMORANDUM OPINION & ORDER granting 96 Motion for Partial Summary Judgment filed by STEAK 'N SHAKE OPERATIONS, INC. Signed by Magistrate Judge Robert C. Mitchell on 3/25/2019. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER MIELO and SARAH HEINZL,
individually and on behalf of all others similarly
situated,
Plaintiffs,
vs
STEAK ‘N SHAKE OPERATIONS, INC.,
Defendant.
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Civil Action No. 15-180
Magistrate Judge Mitchell
MEMORANDUM OPINION AND ORDER
Plaintiffs, Christopher Mielo and Sarah Heinzl, bring this action individually and on
behalf of all others similarly situated against Defendant, Steak ‘N Shake Operations, Inc. (“Steak
‘N Shake”), alleging violations of Title III of the Americans With Disabilities Act, 42 U.S.C.
§§ 12181 to 12189 (ADA). Specifically, they allege that the facilities at Steak ‘N Shake are not
fully accessible to and independently usable by individuals who use wheelchairs for mobility, as
they do, because of various barriers in the parking lots and along the routes to the building
entrances. Moreover, they contend that Steak ‘N Shake’s company-wide ADA compliance
policies and practices are woefully inadequate to ensure that it meets its legal obligation to
provide facilities accessible to persons, like them and the proposed class, who have mobility
disabilities.
Presently before the Court is a motion for summary judgment or in the alternative partial
summary judgment, filed by the Defendant. For the reasons that follow, the motion will be
granted in part to dismiss all claims based on 28 C.F.R. § 36.211 and denied in all other respects.
Facts
Plaintiff Christopher Mielo is a disabled individual who uses a wheelchair and has lived
in Churchill, Pennsylvania since 1994. (Mielo Dep. 6:13-17, 7:5-7, 37:15-21.)1 In May or June
of 2014 or 2015, Mielo visited a Steak ‘N Shake at 650 Waterfront Drive, East Munhall (the
“Munhall location”) and “experienced unnecessary difficulty and risk due to excessive slopes in
a purportedly accessible parking space and accessible aisle.” (Id. 42:17-43:4, 43:19-21.) Mielo
has not returned to the Munhall location. (Id. 55:25-56:7.) Although Mielo has visited Steak ‘N
Shakes in Greensburg (once) and Robinson (“maybe” twice), he did not recall experiencing any
accessibility issues. (Id. 50:19-51:17, 52:10-17, 55:5-14 (clarifying “Murrysville” as
“Greensburg” restaurant).) Mielo has never visited any of the other Steak ‘N Shake locations
listed in the Complaint. (Id. 53:19-25, 55:1-22.)
Plaintiff Sarah Beth Heinzl uses a wheelchair for mobility. (Heinzl Dep. 25:17-19.)2 As
of Fall 2015, Heinzl lives in Tucson, Arizona; however, she maintains a residence in Brookline,
Pennsylvania. (Id. 6:16-7:5, 7:15-20.) She contends that in Summer 2014, she visited Steak ‘N
Shake’s 410 Clairton Boulevard, Pleasant Hills location (the “Clairton location”) where, despite
some alleged difficulties using the access ramp, she “believe[s]” that the difficulty she
experienced operating her wheelchair [in the parking space and lot itself] was based upon the
“material of the parking lot,” not its slope. (Id. 30:19-31:11, 33:12-34:24.) She also stated that
she experienced difficulty pushing up the ramp because of the slope. (Id. 34:7-12.) Heinzl has
visited other Steak ‘N Shake locations in the past, including in Tarentum, Mercer and Robinson;
however, she did not experience or report any such accessibility issues. (Id. 40:15-21, 41:342:18, 43:2-12, 55:1-19.) Heinzl has never returned to the Tarentum or Mercer locations. (Id.
41:3-22, 43:13- 17.) Heinzl has never visited any of the other Steak ‘N Shake locations listed in
the Complaint, nor has she ever visited an Arizona Steak ‘N Shake, while studying there. (Id.
1
2
Def.’s App. (ECF No. 99) Ex. 1.
ECF No. 99 Ex. 2.
2
10:19-11:1, 42:23-43:1, 43:18-44:15.)
Defendant owns, leases, controls, and/or operates approximately 425 restaurants
throughout the United States. (Duffner Dep. 11:14-23.)3 Defendant employs centralized policies
and practices with regard to the design, construction, alteration and maintenance of its facilities.
(Id. 16:9-17:21, 31:7-32:2, 34:2-16.)4 Defendant understands it has an obligation to construct its
facilities in compliance with ADA regulations and to ensure, post-construction, its facilities are
maintained in compliance with the ADA, and actively undertakes efforts to comply with those
obligations. (Id.17:4-21, 24:20-25:7, 31:7-32:2.) Defendant understands that parking facilities
“should be maintained periodically” to ensure that the condition of asphalt or concrete does not
break down, and that a public accommodation such as Defendant has a legal obligation to
construct and to maintain parking facilities in compliance with the ADA. (Id. 34:17-35:22,
63:20-64:3, 64:11-14.)
Defendant’s operations include a facilities maintenance department, “charged with the
responsibility for maintaining corporate-owned facilities throughout the country”, including with
respect to the maintenance of Defendant’s parking facilities. (Id. 16:13-19, 17:4-21, 36:1-4.)
Defendant understands that external conditions such as weather can impact and change the
grading of a parking lot and sidewalk over time, and that the sloping of parking lots and
sidewalks can and does change over time. (Id. 35:12-22; 44:7-21; 45:3-10.) Defendant further
understands and acknowledges that a visual inspection alone may be insufficient to identify
variations in slope grades “unless you’re very well trained.” (Id. 45:11-22.)
Pls.’ Concise Statement (ECF No. 107) Ex. A.
Defendant denies this statement (and other statements made by Plaintiffs) “to the extent that
Plaintiffs seek to summarize the entirety of Mr. Duffner’s testimony, which is in writing and
speaks for itself.” (ECF No. 114 ¶ 2.) However, it is Defendant’s responsibility to point to other
evidence which contradicts the statement Plaintiffs make from the record.
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4
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To ensure its parking facilities are constructed in compliance with the ADA, Defendant
relies exclusively on purportedly ADA-compliant design plans and the permit process of local
agencies. (Id. 31:7-33:1.) Post-construction, Defendant does not assess its parking facilities for
ADA compliance. (Id. 19:17-21:17, 31:1-6, 32:9-14, 71:18-72:24.)
Defendant only conducts an ADA-specific inspection of its parking facilities when a
customer complains or files a lawsuit. (Id. 31:1-6.) Accessibility barriers have formed at and
within Defendant’s parking facilities, as illustrated by the numerous ADA violations detailed in
Plaintiffs’ Complaint. (Compl. ¶ 21.) Following the initiation of this lawsuit, Defendant found
that some claims were valid and others were not. (Duffner Dep. 46:15-49:7.) Defendant admits
that, before this lawsuit was filed, it was not aware of any of the ADA violations detailed in
Plaintiffs’ Complaint, and it engaged in remediation efforts at the properties identified in
Plaintiffs’ Complaint only as a result of the commencement of this litigation. (Duffner Dep.
46:8-50:5.) Defendant indicates that remediation efforts were made “[t]o all of them to some
degree that they were able to effect immediate repairs” (Duffner Dep. 50:4-5), but was unaware
if some repairs were planned for a later date (id. 50:6-8).
Procedural History
Plaintiffs filed this action on February 10, 2015. Federal question jurisdiction is based on
the ADA claim, 28 U.S.C. § 1331; 42 U.S.C. § 12188(a). They allege that the cited violations
constitute “a failure to remove architectural barriers” in violation of 42 U.S.C.
§ 12182(b)(2)(A)(iv) and a failure to alter, design or construct accessible facilities after the
effective date of the ADA in violation of § 12183(a)(1) and the appropriate regulations, which
will deter them and similarly situated individuals from returning to Defendant’s facilities and
that, without injunctive relief, they will be unable to fully access Defendant’s facilities in
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violation of their rights under the ADA. (Compl. ¶¶ 37-47.) They also bring this action on
behalf of all others similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of
Civil Procedure. (Compl. ¶¶ 31-36.)
On November 4, 2016, Plaintiffs filed a motion to certify class (ECF No. 44). Defendant
filed its response in opposition on January 31, 2017 (ECF No. 60) and Plaintiff filed a reply brief
on February 28, 2017 (ECF No. 68). A hearing was held on the class certification motion on
March 20, 2017.
On April 27, 2017, a Memorandum Opinion and Order was filed which granted
Plaintiffs’ motion and certified a class as follows:
All persons with qualified mobility disabilities who were or will be denied the full
and equal enjoyment of the goods, services, facilities, privileges, advantages or
accommodations of any Steak ‘n Shake restaurant location in the United States on
the basis of a disability because such persons encountered accessibility barriers at
any Steak ‘n Shake restaurant where Defendant owns, controls and/or operates the
parking facilities.
(ECF No. 73 at 17.)
Defendant sought leave to appeal from the Court of Appeals and leave was granted on
July 28, 2017 (ECF No. 77). The case was stayed in this Court pending disposition of the appeal
(ECF Nos. 84, 85). On July 26, 2018, the Court of Appeals entered an order reversing the
decision of this Court and remanding the case for further proceedings (ECF No. 86). The
opinion was published as Mielo v. Steak ‘N Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018).
The opinion held as follows:
1) Plaintiffs had standing because they suffered an injury in fact when they encountered
difficulties ambulating in Steak ‘N Shake parking lots, allegedly because Steak ‘N Shake failed
to adopt policies to seek out and correct access violations, they suffered concrete harm in having
to ambulate through parking facilities that were not ADA-compliant and their injuries were
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actual not hypothetical; the injuries were traceable to Steak ‘N Shake; and their injuries were
likely to be redressed by a favorable judicial decision because, even though they requested only
the adoption of policies it was likely that the restaurants would adhere to the policies and correct
any ADA violations that were discovered, particularly if the Court retained jurisdiction over the
case as Plaintiffs proposed.
2) This Court erred in certifying a class when “doubt” existed, using a “relaxed” class
certification standard that did not survive the 2003 amendments to Rule 23 of the Federal Rules
of Civil Procedure.
3) Plaintiffs failed to meet the numerosity standard under Rule 23(a)(1) because census
data (showing that there are between 14.9 and 20.9 million persons with mobility disorders in the
United States and therefore it is “highly likely” that at least 40 of them experienced access
violations at Steak ‘N Shake restaurants) was not sufficient to speculate in this manner; the same
result applied to a statement made by a Steak ‘N Shake executive (itself speculation); and
Plaintiffs’ request for a “relaxed” standard in cases of injunctive and declaratory relief was based
on an overly expansive reading of a statement in In re Modafnil Antitrust Litigation, 837 F.3d
238, 252-53 (3d Cir. 2016) that merely described one factor within a non-exhaustive list of six
and did not articulate a relaxed standard.
4) The Court’s defined class was too broad for the commonality factor under Rule
23(a)(2), referring to any persons who “encountered accessibility barriers at any Steak ‘N Shake
restaurant” and thus was not limited to the parking lot issues (also would include bathroom
doors, water fountains, etc.); in fact, there are multiple distinct parking lots issues (ramp slope,
location of “accessible” parking signage, etc.).
5) The case is remanded for Plaintiffs to redefine the class to try to meet the numerosity
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and commonality factors and to come up with a single injunction that would provide to all
members of the class, Rule 23(b)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
On November 7, 2018, Defendant filed the pending motion for summary judgment or, in
the alternative, partial summary judgment (ECF No. 96). On December 27, 2018, Plaintiffs filed
a brief in opposition (ECF No. 106) and on January 28, 2019, Defendant filed a reply brief (ECF
No. 113).
Standard of Review
The Federal Rules of Civil Procedure provide that: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may
be granted against a party who fails to adduce facts sufficient to establish the existence of any
element essential to that party’s case, and for which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of identifying evidence which demonstrates the absence of a genuine issue of material
fact. Once that burden has been met, the non-moving party must set forth “specific facts
showing that there is a genuine issue for trial” or the factual record will be taken as presented by
the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court of Appeals has held that “where the movant
bears the burden of proof at trial and the motion does not establish the absence of a genuine
factual issue, the district court should deny summary judgment even if no opposing evidentiary
matter is presented.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d
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Cir. 1992).
In following this directive, a court must take the facts in the light most favorable to the
non-moving party, and must draw all reasonable inferences and resolve all doubts in that party’s
favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County
of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
Defendant argues that: 1) there is no obligation under 28 C.F.R. § 36.211 for it to create a
maintenance policy or practice to identify and repair barriers to access, both because the
regulation says nothing about it and because such a requirement would be in tension with the
obligation to remove barriers “where it is readily achievable to do so,” and Plaintiffs conceded
on appeal that the regulation imposes no such requirement, to conclude otherwise would raise
constitutional problems by creating a vague obligation which Steak ‘N Shake was unaware of
and which would be impossible to meet, in addition to which there is no private cause of action
under Section 211; and 2) Plaintiffs have failed to demonstrate that they have standing,
particularly the requirement of establishing traceability as there is no basis for tracing Plaintiffs’
injuries or barriers they encountered to a policy or lack of one by Steak ‘N Shake.
Plaintiffs respond that: 1) Defendant has mischaracterized our theory, which is not that
Steak ‘N Shake needs to seek out potential violations but rather that it needs to ensure—post
construction—that its facilities remain compliant under the ADA, parking lot slopes can be kept
in “working condition” as can “accessible routes” and the regulations urge public
accommodations to establish procedures for ongoing assessment of compliance, and Defendant
improperly raises financial concerns but the standards already account for this issue by referring
to “undue burdens” and “readily achievable” measures; 2) Section 211 is not unconstitutionally
vague, rather the Department of Justice (DOJ) provides extensive guidelines, standards, technical
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materials, manuals and handbooks; 3) there is a private right of action provided in 28 C.F.R.
§ 36.501; and 4) Plaintiffs have standing because Defendant’s policy allows problems to persist
and individuals are eventually injured or bring suit.
In a reply brief, Defendant argues that: 1) to the extent that Plaintiffs seek relief under
Section 211, they cannot pursue it under that regulation and if not, Steak ‘N Shake is still entitled
to partial summary judgment as to any claim they have asserted under Section 211; 2) Title III
requires public accommodations to ensure that new construction meets certain standards, to
undertake alterations in compliance with the ADA and to remove barriers where it is readily
achievable but not to maintain a policy of looking for potential problems, and Plaintiffs admitted
as much on appeal; 3) Section 501 cannot create a right to pursue a violation of another
regulation unless Congress has already created the right and it has not; and 4) Plaintiffs lack
standing not as to individual locations they visited but as to the “maintenance policy” which
relies upon the private right of action and permanent inspect-and-repair obligations that Section
211 does not impose.
Scope of ADA Relief
Title III of the ADA “prohibits discrimination against the disabled in the full and equal
enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119,
128 (2005). Specifically, it requires, inter alia, “places of public accommodation” to “remove
architectural barriers … in existing facilities … where such removal is readily achievable,” 42
U.S.C. § 12182(b)(2)(A)(iv), and to “design and construct facilities for first occupancy [no] later
than 30 months after July 26, 1990 that are readily accessible to and usable by individuals with
disabilities,” § 12183(a). Places of public accommodation include “a restaurant, bar, or other
establishment serving food or drink,” § 12181(7)(B), and thus include Steak ‘N Shake. Failure
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to meet these requirements constitutes a violation of the ADA which may be enforced by
individuals bringing suit for injunctive relief in federal court, § 12188(a). The statute further
states that “injunctive relief shall also include … modification of a policy….” Id.
“Under Title III of the ADA, private plaintiffs may not obtain monetary damages and
therefore only prospective injunctive relief is available.” Anderson v. Macy’s, Inc., 943 F. Supp.
2d 531, 538 (W.D. Pa. 2013) (citation omitted). See 42 U.S.C. § 12188(a) (providing that the
remedies available to individuals shall be those set forth in 42 U.S.C. § 2000a-3(a), which allows
a private right of action only for injunctive relief for violations of Title II of the Civil Rights Act
of 1964); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (noting that Title II
allows for injunctive relief only).
In addition to § 12188(a)(2), Plaintiffs also rely on 28 C.F.R. §§ 36.211 and 36.501. The
first regulation states that:
(a) A public accommodation shall maintain in operable working condition those
features of facilities and equipment that are required to be readily accessible to
and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or
access due to maintenance or repairs.
(c) If the 2010 Standards reduce the technical requirements or the number of
required accessible elements below the number required by the 1991 Standards,
the technical requirements or the number of accessible elements in a facility
subject to this part may be reduced in accordance with the requirements of the
2010 Standards.
28 C.F.R. § 36.211.5
The second provision states that:
(a) General. Any person who is being subjected to discrimination on the basis of
disability in violation of the Act or this part or who has reasonable grounds for
believing that such person is about to be subjected to discrimination in violation
5
The 2010 Standards are found at 36 C.F.R. pt. 1191, App. B & D.
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of section 303 of the Act or subpart D of this part may institute a civil action for
preventive relief, including an application for a permanent or temporary
injunction, restraining order, or other order. Upon timely application, the court
may, in its discretion, permit the Attorney General to intervene in the civil action
if the Attorney General or his or her designee certifies that the case is of general
public importance. Upon application by the complainant and in such
circumstances as the court may deem just, the court may appoint an attorney for
such complainant and may authorize the commencement of the civil action
without the payment of fees, costs, or security. Nothing in this section shall
require a person with a disability to engage in a futile gesture if the person has
actual notice that a person or organization covered by title III of the Act or this
part does not intend to comply with its provisions.
(b) Injunctive relief. In the case of violations of §§ 36.304, 36.308, 36.310(b),
36.401, 36.402, 36.403, and 36.405 of this part, injunctive relief shall include an
order to alter facilities to make such facilities readily accessible to and usable by
individuals with disabilities to the extent required by the Act or this part. Where
appropriate, injunctive relief shall also include requiring the provision of an
auxiliary aid or service, modification of a policy, or provision of alternative
methods, to the extent required by the Act or this part.
28 C.F.R. § 36.501.
The parties argue at length over the wording of Section 211. Defendant contends that it
says nothing about creating a policy to inspect for and repair barriers, that the phrase “maintain
in operable working condition those features of facilities and equipment” in no way suggests an
affirmative obligation to seek out any and all barriers to access and repair them, that “features” is
vague and ambiguous, that parking lot slopes do not constitute “facilities and equipment” and
that the kind of obligation Plaintiffs seek to read into Section 211was in fact imposed by the DOJ
on Title II entities in 28 C.F.R. §§ 35.105(a) (requiring any public entity to perform a one-time
evaluation of its “current services, policies and practices” and modify them as necessary) and
35.150(d)(1) (requiring public entities to develop a transition plan setting forth the steps
necessary to make structural changes to facilities) and thus it does not apply here.
Plaintiffs respond that Defendant has ignored the word “maintain” which requires
ongoing action by a public accommodation, that Section 211 is not limited only to mechanical
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equipment as indicated in a DOJ guidance, that “accessible routes” can be maintained in
“operable working condition” as indicated in DOJ guidances and technical assistance manuals,
that the obligation to maintain facilities is ongoing, that Congress intended to place the burden to
identify discriminatory conditions on public accommodations rather than individuals and that
Defendant is well aware of its obligations under Section 211 but willfully chooses not to comply.
The parties agree that, if alerted to a problem at one of its restaurants, including those
identified in the Complaint (accessible parking spaces, access aisles and routes to the facility
entrance the slopes of which exceeded 2.1%, accessible spaces not marked with required signs,
no spaces marked as “van accessible,” signs mounted less than 60 inches above the finished
surface, a route to the facility with a running slope which exceeded 5.0%, and a curb ramp with
an excessive running slope), Steak ‘N Shake would have an obligation to remedy the issue. The
question presented is whether the ADA or its regulations place a burden on Steak ‘N Shake to
seek out and find these compliance issues or whether Steak ‘N Shake is obligated to act only
when alerted to their existence.
Unfortunately for Plaintiffs, the wording of Section 211 simply does not support the
burden they wish to place on Steak ‘N Shake. It is true that the word “maintain” contemplates an
ongoing duty, and Steak ‘N Shake admits that its duty to operate ADA-compliant facilities is
ongoing. “This section recognizes that it is not sufficient to provide features such as accessible
routes, elevators, or ramps, if those features are not maintained in a manner that enables
individuals with disabilities to use them.” 28 C.F.R. pt. 36, App. C, § 36.211. See Lozano v.
C.A. Martinez Family Ltd. P’ship, 129 F. Supp. 3d 967, 973 (S.D. Cal. 2015) (plaintiff submitted
evidence that the painted surface of the accessible parking spots had faded to the point that the
markings were nonexistent or barely visible, and thus was entitled to an injunction requiring the
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defendant to repaint them).
Further, Section 211 is not limited only to mechanical equipment. As a DOJ guidance
explains:
The Department has noticed that some covered entities do not understand what is
required by § 36.211, and it would like to take the opportunity presented by this
NPRM to clarify. Section 36.211(a) broadly covers all features that are required
to be accessible under the ADA, from accessible routes and elevators to roll-in
showers and signage. It is not sufficient for a building or other feature to be built
in compliance with the ADA, only to be blocked or changed later so that it is
inaccessible. A common problem observed by the Department is that covered
facilities do not maintain accessible routes. For example, the accessible routes in
offices or stores are commonly obstructed by boxes, potted plants, display racks,
or other items so that the routes are inaccessible to people who use wheelchairs.
Under the ADA, the accessible route must be maintained and, therefore, these
items are required to be removed. If the items are placed there temporarily—for
example, if an office receives multiple boxes of supplies and is moving them from
the hall to the storage room—then § 36.211(b) excuses such “isolated or
temporary interruptions.” Other common examples of features that must be
maintained, and often are not, are platform lifts and elevators. Public
accommodations must ensure that these features are operable and, to meet this
requirement, regular servicing and making repairs quickly will be necessary.
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial
Facilities, 73 Fed. Reg. 34508-01, 34523 (June 17, 2008). And contrary to Defendant’s
assertion, the word “facility” is not vague; it “means all or any portion of buildings, structures,
sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways,
parking lots, or other real or personal property, including the site where the building, property,
structure, or equipment is located.” 28 C.F.R. § 36.104. Thus, it would cover access aisles,
accessible parking spaces and curb ramps in the parking lot.
Plaintiffs contend that “accessible routes”6 can be maintained in “operable working
The 2010 ADA Accessibility Guidelines define an “accessible route” as “[a] continuous
unobstructed path connecting all accessible elements and spaces of a building or facility. Interior
accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at
fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at
6
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condition,” citing an ADA guide which states that “towns must maintain in operable working
condition those features that are necessary to provide access to services, programs, and
activities—including elevators and lifts, curb ramps at intersections, accessible parking spaces,
ramps to building or facility entrances, door hardware, and accessible toilet facilities.” US DOJ,
ADA Guide for Small Towns, Civil Rights Division, Disability Rights Sections (April 2000).7
This document is about Title II, rather than Title III. Plaintiffs also note that a DOJ technical
assistance manual states that public accommodations are required to, inter alia: “maintain curb
ramps and sidewalks to prevent large cracks and uneven surfaces from forming.” US DOJ,
Maintaining Accessible Features in Retail Establishments.8
Nevertheless, a public accommodation can fulfill these duties by making repairs when it
finds problems or when problems are brought to its attention, which is not the same proposition
as requiring it to create a policy to inspect for such problems. Plaintiffs’ argument fails when
they attempt to place the burden to inspect for such potential issues on the public
accommodation, a position that is not supported anywhere in the statute or regulations. Plaintiffs
cite to a section of the ADA indicating that the intent of the statute was “to make it easier for
people with disabilities to obtain protection under the ADA.” 28 C.F.R. § 36.101(b). And they
argue that public accommodations have been expressly put on notice of what they are required to
do, including the ongoing duties to construct accessible facilities, remove barriers and maintain
accessibility, by virtue of the ADA and its implementing regulations. 28 C.F.R. § 36.401 et seq.;
Standards § 4 et seq; 73 Fed. Reg. 34508-01, 34523.
As noted above, the DOJ imposed inspection requirements on Title II entities in 28
vehicular ways, walks, ramps, and lifts.” 28 C.F.R. pt. 36, App. D, § 3.5.
7
Available at https://www.ada.gov/smtown.htm#anchor19789.
8
Available at https://www.ada.gov/business/retail_access.htm.
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C.F.R. §§ 35.105(a) (requiring any public entity to perform a one-time evaluation of its “current
services, policies and practices” and modify them as necessary) and 35.150(d)(1) (requiring
public entities to develop a transition plan setting forth the steps necessary to make structural
changes to facilities). Section 211 contains no such language.
In fact, a DOJ regulatory guidance on Title III states that:
Although the obligation to engage in readily achievable barrier removal is clearly
a continuing duty, the Department has declined to establish any independent
requirement for an annual assessment or self-evaluation. It is best left to the
public accommodations subject to § 36.304 to establish policies to assess
compliance that are appropriate to the particular circumstances faced by the wide
range of public accommodations covered by the ADA. However, even in the
absence of an explicit regulatory requirement for periodic self-evaluations, the
Department still urges public accommodations to establish procedures for an
ongoing assessment of their compliance with the ADA’s barrier removal
requirements. The Department recommends that this process include appropriate
consultation with individuals with disabilities or organizations representing them.
A serious effort at self-assessment and consultation can diminish the threat of
litigation and save resources by identifying the most efficient means of providing
required access.
28 C.F.R. Pt. 36, App. C, § 36.304. Plaintiffs invoke this paragraph to argue that, while public
accommodations may have discretion to establish procedures for ongoing assessment, they do
not have “permission to indefinitely ignore discriminatory conditions or to wait until they deter
or deny access to someone with a disability.” (ECF No. 106 at 11.) However, they cannot
escape the plain language of this guidance, namely that the DOJ does not impose any
independent requirement for assessment or self-evaluation. If a public accommodation allows
conditions to deteriorate to the point that an individual with a disability is deterred or denied
access, that individual can sue for an ADA violation, but this does not mean that the public
accommodation is also independently liable for failing to notice the condition in the first place.
The Court of Appeals made these observations in the case on appeal:
Plaintiffs implicitly argue that it would be good policy to interpret Section
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211 to require places of public accommodation to actively seek out access
violations, as compared to correcting access violations as they are discovered. See
Appellee Br. 37 (arguing that Steak ‘n Shake “effectively ... push[es] its
obligation to maintain the accessibility of its restaurants onto customers”). But
while relieving customers of the burden of bringing access violations to the
attention of restaurants might be good policy, it appears to be in tension with the
very policy which Congress codified in the text of the ADA.
In enacting the ADA, Congress made clear that “the nature and cost” of a
particular action, as well as “the overall financial resources of the facility or
facilities involved in the action,” must be taken into account when determining
whether a particular access violation constitutes ADA “discrimination” that must
be corrected. 42 U.S.C. § 12181(9). In doing so, Congress heeded the obvious:
places of public accommodation have finite resources to allocate to correcting
access violations.
The text of the ADA seems to suggest, then, that disabled patrons like
Mielo and Heinzl are better served when restaurants are required to spend their
limited financial resources on correcting only the access violations that disabled
patrons have actually brought to the restaurant’s attention—rather than requiring
those establishments to expend their limited resources in an ongoing search for
potential violations that may not exist.
Mielo, 897 F.3d at 478 n.10.
The mandate rule, a species of the law of the case doctrine, requires district courts to
adhere to the mandate of the court of appeals on remand, Casey v. Planned Parenthood of
Southeastern Pennsylvania, 14 F.3d 848, 856 (3d Cir. 1994), but this rule does not extend to
dicta or matters that the court of appeals did not decide. Quern v. Jordan, 440 U.S. 332, 347 n.18
(1979). The Court of Appeals, on appeal of the class action certification decision of this Court,
explicitly stated that “in light of our inability to fully engage the merits at this state of the
litigation, we are not at liberty to decide whether Plaintiffs’ novel interpretation of the ADA and
its corresponding regulations would survive a dispositive motion under either Rule 12(b)(6), or
Rule 56 of the Federal Rules of Civil Procedure.” 897 F.3d at 478. Thus, the Court of Appeals
was not addressing the merits Plaintiffs’ claim and this Court is not bound by the comments
16
made by the Court of Appeals in a footnote.9 Nevertheless, “cogent dicta are likely to command
substantial respect both on remand to a lower court and on subsequent appeal to the same court.”
18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure
§ 4478 (2d ed. 2002).
As observed by the Court of Appeals, the ADA requires public accommodations to
“remove architectural barriers” where such removal is “readily achievable,” 42 U.S.C.
§ 12182(b)(2)(A)(iv), and defines “readily achievable” as:
easily accomplishable and able to be carried out without much difficulty or
expense. In determining whether an action is readily achievable, factors to be
considered include—
(A) the nature and cost of the action needed under this chapter;
(B) the overall financial resources of the facility or facilities involved in
the action; the number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such action upon the operation
of the facility;
(C) the overall financial resources of the covered entity; the overall size of
the business of a covered entity with respect to the number of its employees; the
number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the
composition, structure, and functions of the workforce of such entity; the
geographic separateness, administrative or fiscal relationship of the facility or
facilities in question to the covered entity.
§ 12181(9). See also 28 C.F.R. § 36.304(a). Plaintiffs argue that this provision addresses the cost
of removing the barriers, not the cost of identifying them in the first instance. Although this is a
true statement, it misses the larger point, which is that Congress and the DOJ have not indicated
that the costs of remedying ADA violations should always be borne by the public
On the other hand, Plaintiffs argue that “the court reduced Plaintiffs’ theory of harm with
respect to Section 211 to a theory that Plaintiffs never advanced.” (ECF No. 106 at 5 n.4.) This
Court is bound by the Court of Appeals’ description of theory of harm that Plaintiffs presented to
it and which they appear to be presenting again here, although they disavow it.
9
17
accommodation. As for the costs of identifying the violations, it could be argued that Congress,
in enacting 42 U.S.C. § 12188—which allows individuals to bring suit for ADA violations and
obtain injunctive relief, and also § 12205, which allows for their lawyers to collet reasonable
attorney’s fees for bringing such suits—recognized that individuals with disabilities are often in
a better position to notice such problems and bring them to the attention of the public
accommodation.
Defendant also notes that even newly-built facilities are permitted to deviate from
building standards in certain circumstances. See 36 C.F.R. Pt. 1191, App. B, § 104.1.1
(conventional industry tolerances); 28 C.F.R. § 36.401(c)(1) (structural impracticability because
of terrain or other factors prevent incorporation of accessibility features). But Plaintiffs’
proposal to conduct inspections for potential violations contains no individualized analysis and
would seemingly require permanent ongoing obligations to guarantee Steak ‘N Shake’s
compliance with all of the requirements in the 2010 ADA Standards.
For all the reasons identified by the Court of Appeals and by Defendant, Plaintiffs have
not demonstrated that Section 211 contains a requirement that Steak ‘N Shake adopt a policy of
identifying potential ADA violations such as the slope of the access aisles in its parking lots.
Plaintiffs attempt to argue that this is not the gravamen of their Complaint, but their awkward
change of course does not alter the situation. Although Plaintiffs now argue that their claim is
based on Defendant’s failure to “maintain” its parking lot in “operable condition” as explained
above, Defendant does not contest that a particular parking lot that falls out of operable condition
(that is, that develops an excessive slope, for example) cannot be the source of an action under
the ADA, only that its failure to seek out and find such a violation cannot itself form the basis of
an ADA complaint. They contend that Defendant has no policy to inspect for ADA violations
18
such as the parking lot issues cited herein, but also argue that they “seek a modification of
Defendant’s existing policy in order to remedy its discriminatory impact.” (ECF No. 106 at 2.)
Perhaps, after reading the opinion of the Court of Appeals, Plaintiffs had to revise their approach
to this case, but in any event, they cannot maintain their claim to the extent that it is based on
Section 211.
Constitutional Analysis
Defendant also argues that, if Section 211 were interpreted as Plaintiffs construe it, such a
construction would violate two constitutional principles: vagueness and lack of fair notice.
Plaintiffs contend that Section 211 presents no constitutional problems.
Plaintiffs cite to the ADA building standards and certain other DOJ-issued materials that
they contend are sufficiently specific to prevent a due process violation. But as Defendant notes,
the building standards are specifically designed and written to provide guidance for new
construction and alterations, but Section 211 contains no such standards for frequency, scope,
depth of inspection or timeline for remediation. As such, it does not provide “fair notice of
conduct that is forbidden or required,” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253
(2012), and would be also void for vagueness if it imposed on public accommodations the
requirement of adopting a policy of searching for potential ADA violations as Plaintiffs contend.
Plaintiffs contend that the “obligation to engage in readily achievable barrier removal is a
continuing one.” ADA Title III Technical Assistance Manual Covering Public Accommodations
and Commercial Facilities, III-4.4400.10 However, they have not explained how this addresses
the issue: is the duty to inspect they seek to imply on an annual basis? Is it more frequently?
They also cite materials indicating that allowing obstructions “to persist beyond a reasonable
10
Available at https://www.ada.gov/taman3.html.
19
period of time would violate [Section 211].” 28 C.F.R. Pt. 36, App. C, § 36.211. However, their
Complaint does not allege that Steak ‘N Shake was aware of parking lot access violations and
allowed them to persist “beyond a reasonable period of time,” but rather than Steak ‘N Shake
failed to seek out and find the problems within a reasonable time. Thus, their proposed reading
of Section 211 would also raise constitutional problems of vagueness and lack of notice.
Private Cause of Action
Defendant also argues that Section 211 does not provide Plaintiffs with a private cause of
action, even if the regulation could be read as broadly as they contend. Plaintiffs respond that
Section 501 provides a private cause of action, but Defendant replies that one regulation cannot
provide a private cause of action for violation of another regulation unless Congress has so
indicated.
The Supreme Court has held that:
Language in a regulation may invoke a private right of action that Congress
through statutory text created, but it may not create a right that Congress has not.
Touche Ross & Co. v. Redington, 442 U.S., at 577, n. 18, 99 S.Ct. 2479 (“[T]he
language of the statute and not the rules must control”). Thus, when a statute has
provided a general authorization for private enforcement of regulations, it may
perhaps be correct that the intent displayed in each regulation can determine
whether or not it is privately enforceable. But it is most certainly incorrect to say
that language in a regulation can conjure up a private cause of action that has not
been authorized by Congress. Agencies may play the sorcerer's apprentice but not
the sorcerer himself.
Alexander v. Sandoval, 532 U.S. 275, 291 (2001). The Court of Appeals has held that, when
regulations “focus on the person regulated rather than individuals protected” and have an
“aggregate focus,” rather than an individual one, they create “no implication of an intent to
confer rights on a particular class of persons,” and therefore create no enforceable right of action.
Three Rivers Ctr. for Independent Living, Inc. v. Housing Auth. of City of Pittsburgh, 382 F.3d
412, 429-30 (3d Cir. 2004). In that case, the court held that a regulation promulgated under
20
Section 504 of the Rehabilitation Act, 24 C.F.R. § 8.22(a), did not provide a private right of
action. Similarly, a district court held that regulations implementing Title II of the ADA,
specifically 28 C.F.R. §§ 35.130(d) and 41.51(d), did not provide a private cause of action.
Zatuchni v. Richman, 2008 WL 3408554, at *11-12 (E.D. Pa. Aug. 12, 2008). See also
Abrahams v. MTA Long Island Bus, 644 F.3d 110, 118-19 (2d Cir. 2011) (49 C.F.R.
§ 37.137(c), which created a procedural requirement that public entities permit ongoing public
participation in developing and assessing paratransit services, could not be enforced as a private
cause of action under 42 U.S.C. § 12143 of the ADA because the regulation’s “ongoing
requirement” had a broader application than the implementation of the initial plan or submission
of annual updates set forth under the statute); Ability Ctr. of Greater Toledo v. City of Sandusky,
385 F.3d 901, 914 (6th Cir. 2004) (28 C.F.R. § 35.150(d) may create a procedural requirement
that encourages public entities to consider and plan ways in which they will accommodate the
disabled, but there is no indication that a public entity’s failure to develop a transition plan harms
disabled individuals, much less in a way that Title II aims to prevent or redress).
Section 211 focuses on the regulated entity (“A public accommodation shall”), not the
protected individuals.11 Plaintiffs attempt to distinguish Three Rivers on the ground that a public
accommodation’s failure to comply with Section 211 will necessarily deny access to that
accommodation. However, as Defendant notes, many potential violations of Section 211,
including many of those alleged by Plaintiffs, are highly technical and would not necessarily
result in a denial of access. They also cite cases such as Shariff v. Radamar Meat Corp., 2014
WL 1311563, at *3 (E.D.N.Y. Feb. 14, 2014), as enforcement actions under regulations such as
11
Defendant notes that at least one district court has held that there is no private right of action
even under the DOJ’s inspect-and-repair obligations under Title II, 28 C.F.R. § 36.105. See
Cherry v. City College of San Francisco, 2005 WL 2620560, at *4 (N.D. Calif. Oct. 14, 2005).
21
28 C.F.R. §§ 36.304(b) and 36.402(b). However, the court found the defendant liable pursuant
to 42 U.S.C. § 12182(b)(2)(A)(iv) for failing to remove architectural barriers and only cited to
the regulations to conclude that the plaintiff could obtain an injunction that would require the
defendant to create accessible parking spaces. The court did not find the defendant
independently liable under the regulation, much less find it liable for having failed to notice that
it lacked accessible parking spaces.
Standing
The Supreme Court has held that:
In every federal case, the party bringing the suit must establish standing to
prosecute the action. “In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The
standing requirement is born partly of “‘an idea, which is more than an intuition
but less than a rigorous and explicit theory, about the constitutional and prudential
limits to the powers of an unelected, unrepresentative judiciary in our kind of
government.’” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d
556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–1179
(C.A.D.C. 1982) (Bork, J., concurring)).
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). The Court has explained that:
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992), we held that, to satisfy Article III’s standing
requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Defendant argues that Plaintiffs cannot meet the element of traceability because they
cannot demonstrate that their injuries were “caused” by Steak ‘N Shake’s alleged unlawful
corporate practices. That is, Plaintiffs cannot connect the single injuries they suffered
(encountering a non-compliant slope at a Steak ‘N Shake parking lot, for example) to Steak ‘N
22
Shake’s failure to adopt a maintenance policy because the barrier to access may be the result of
improper construction, faulty modification, weather, an inadequate policy, rogue disobedience of
the policy, poor execution of the policy or some other cause.
The Court of Appeals has stated that:
The second element of Article III standing is causation. This element
requires the alleged injury to be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not
before the court.” This requirement is “akin to ‘but for’ causation” in tort and may
be satisfied “even where the conduct in question might not have been a proximate
cause of the harm.” An “indirect causal relationship will suffice,” provided that
“there is a ‘fairly traceable connection between the alleged injury in fact and the
alleged conduct of the defendant.’”
Finkelman v. National Football League, 810 F.3d 187, 193-94 (3d Cir. 2016) (footnotes
omitted). In this case, the Court of Appeals indicated that, “While Plaintiffs will face a heavier
burden to establish causation should they eventually be put to their proof, their burden of
establishing causation at the pleadings stage is less stringent.” Mielo, 897 F.3d at 481. Thus, as
Defendant notes, Plaintiffs cannot simply rely on their pleadings as they did previously.
Plaintiffs contend that they have satisfied the requirement of standing with respect to the
individual barriers they encountered, but as Defendant observes, that is not the issue. They also
rely on this Court’s opinion in Heinzl v. Cracker Barrell Old Country Stores, Inc., in which the
undersigned suggested that:
Under Defendant’s construction of the ADA, it could even have an express policy
of ignoring architectural barriers at its stores, then (only when it is sued over such
barriers and it has contested the suit for some time), remediate the barrier and put
an end to the matter. As Plaintiff observes, the ADA was not intended to work in
this fashion: “No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges or accommodations of any place of public accommodation.” 42 U.S.C.
§ 12182(a).
2016 WL 2347367, at *18 (W.D. Pa. Jan. 27, 2016), report and recommendation adopted as
23
modified, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016). However, this opinion predated the
Court of Appeals’ decision in this case and its skepticism that the lack of a corporate
maintenance policy would provide plaintiffs with standing in such a circumstance.
Plaintiffs have failed to demonstrate how their individual injuries can be traced to Steak
‘N Shake’s lack of a maintenance policy, as opposed to a myriad of other potential causes. For
this reason, also, Defendant’s motion for summary judgment will be granted.
Conclusion
To the extent that Plaintiffs’ claims are based on Section 211, the motion for summary
judgment will be granted. However, Defendant has not claimed or demonstrated that it has
remedied the violations cited in the Complaint, nor is it clear that the entire case is subject to
dismissal at this time. Therefore, the motion for summary judgment will be granted in part, and
the parties can then articulate what remains to be litigated in this case.
An appropriate order follows.
24
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER MIELO and SARAH HEINZL,
individually and on behalf of all others similarly
situated,
Plaintiffs,
vs
STEAK ‘N SHAKE OPERATIONS, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 15-180
Magistrate Judge Mitchell
ORDER
AND NOW, this 25th day of March, 2019, for the reasons explained in the opinion
above,
IT IS HEREBY ORDERED that the motion for summary judgment filed by Defendant,
Steak ‘N Shake Operations, Inc. (ECF No. 96) is granted to the extent that Plaintiffs’ claims are
based on 28 C.F.R. § 36.211 and denied in all other respects.
s/Robert C. Mitchell_______
ROBERT C. MITCHELL
United States Magistrate Judge
25
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